Rickard v. Major

• Decision Date: 07 October 1907
• Docket Number: 31-1907
• Citation: 34 Pa.Super. 107
• Parties: Rickard v. Major, Appellant
• Court: Pennsylvania Superior Court

34 Pa.Super. 107

Rickard v. Major, Appellant

No. 31-1907

Superior Court of Pennsylvania

October 7, 1907

Argued February 26, 1907

Appeal by defendant, from order of C.P. Luzerne Co.-1906, No. 40 making absolute rule for judgment for want of a sufficient affidavit of defense in case of John B. Rickard and Edith L Rickard v. A. L. Major.

Replevin for one team of bay horses, one set of double harness and one lumber wagon. Before Wheaton, J.

The facts are stated in the opinion of the Superior Court.

Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

Affirmed.

M. H McAniff, with him P. W. McKeown, for appellant, cited: Snyder v. Vaux, 2 Rawle, 423; Hoffman v. Sellers, 5 Pa. Dist. 395.

Abram Salsburg, with him W. Alfred Valentine, for appellees, cited: Harlan v. Harlan, 15 Pa. 507; Miller v. Warden, 111 Pa. 300; Ferguson v. Lauterstein, 160 Pa. 427; Hoffman v. Sellers, 5 Pa. Dist. 395; Boyle v. Rankin, 22 Pa. 168; Knowles v. Lord, 4 Whart. 500; Dumn v. Rothermel, 112 Pa. 272; Turner v. Scott, 51 Pa. 126; Shafer v. Senseman, 125 Pa. 310; Fox v. Magaw, 12 Pa. Dist. 53; Mfg. Co. v. Killinger, 26 Pa. C.C. 539; Painter v. Snyder, 22 Pa.Super. 603.

Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.

OPINION

HEAD, J.

This action of replevin was begun on January 31, 1906. By the writ issued on that day the sheriff was commanded to replevy " one team of bay horses, one set of double harness and one lumber wagon," of the value, etc. To this writ the sheriff returned: " I hereby certify and return that on February 1, 1906, I replevied as within commanded and summoned the within named defendant. . . . On February 1, 1906, a claim property bond was filed, and property so replevied delivered to the defendant."

The plaintiffs then filed their statement of claim, under the act of 1901, setting forth that on November 14, 1904, they had entered into a written agreement with the defendant, by the terms of which they sold and delivered to him all of their interest in the capital stock of a certain lumber company, and that, of the consideration named therefor, there remained to be paid thereafter the sum of $ 159. That the defendant, in the same agreement, sold, transferred and granted unto the plaintiffs " one team of bay horses, one set of double harness and one lumber wagon, as collateral security for the payment of the balance due on the stock," but that it was also provided therein that the defendant " is hereby given permission to take care of and use, at his own expense, the said team of horses, etc., until December 20, 1904, and for such further time as the said parties of the second part shall consent in writing." The statement then averred that defendant had refused to pay the money long since due, and also to surrender the possession of the pledged property, although the term of his lawful possession and use of it had expired, etc. The plaintiffs thus clearly set forth, at least such a qualified title to the property as would sustain their right of possession as against the defendant, and would warrant a judgment in their favor unless a sufficient defense were interposed: Ferguson v. Lauterstein, 160 Pa. 427. It then became incumbent on the defendant, under the Act of April 19, 1901, P. L. 88, in order to prevent such judgment, to file an affidavit of defense " setting up the facts, denying plaintiffs' title and showing his own title to said goods and chattels." This the defendant attempted to do, but the learned court below held the affidavit to be insufficient, and by reason thereof entered judgment for the plaintiffs. From that judgment this appeal is taken.

The affidavit first sets up an alleged imperfect or improper execution of the written agreement by the plaintiffs in that their names were signed by their attorney and not by themselves. Inasmuch as the agreement, so far as the plaintiffs are concerned, had been long since fully executed, and as this action, begun by them, was in affirmance of the contract, the futility of such an averment is so manifest as to render any discussion of it wholly unnecessary.

It is next averred " that there never was a delivery to the plaintiffs, either actually or constructively," of the property pledged and replevied, " nor were the particular horses selected to be turned over as collateral security." In Ferguson v. Lauterstein, 160 Pa 427, following Harlan v. Harlan, 15 Pa. 507, it is expressly held that " it is well settled, as a general principle in Pennsylvania, that replevin lies wherever one man claims goods in the possession of another, and this whether the claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right of possession." As to the latter portion of the averment quoted it would be sufficient to say that the affidavit makes no allegation that either at the time of the agreement or the execution of the writ the defendant owned more than one team of bay horses, and, therefore, there was no necessity to further individuate them. But, in Ruch v. Morris, 28 Pa. 245, the plaintiff issued his writ for " two carriages and two horses." The sheriff returned: " Replevied and summoned as commanded. Property bond entered and property delivered to the defendant." To the declaration describing the property only in the language quoted, the defendant demurred because " there was no...